Summary
The United States Court of Appeals for the Second Circuit considers Daniel Harris’s untimely appeal challenging conditions of supervised release imposed following his federal drug and firearm convictions. The court holds that the government forfeited its objection to the appeal’s untimeliness and reaches the merits. It remands with instructions to vacate the 13 Standard Conditions and Special Conditions Two, Three, and Four, while affirming the judgment in all other respects.
Topics
Practice areas
Questions Presented
- Whether the government's failure to raise the obvious untimeliness of Harris's criminal appeal in its motion for summary affirmance forfeited the objection under Federal Rule of Appellate Procedure 4(b).
- Whether nonmandatory standard conditions of supervised release may be imposed in a written judgment without being orally pronounced or specifically incorporated during sentencing.
- Whether the written curfew condition impermissibly added burdensome restrictions to the orally pronounced curfew condition.
- Whether the mental-health and substance-abuse treatment conditions impermissibly delegated to the Probation Department the decision whether Harris must participate in treatment.
- Whether the written search condition impermissibly added burdensome restrictions beyond the search condition orally pronounced at sentencing.
Holdings
- Federal Rule of Appellate Procedure 4(b)'s criminal appeal deadline is mandatory but nonjurisdictional and may be forfeited by the government. Where the untimeliness of an appeal is obvious and the government moves for summary affirmance without raising timeliness, the government forfeits the objection.
- A sentencing court intending to impose nonmandatory standard conditions of supervised release, including the standard conditions described in U.S.S.G. § 5D1.3(c), must notify the defendant during the sentencing proceeding by expressly adopting or specifically incorporating particular written conditions made available to the defendant. Conditions included only in the later written judgment must be vacated.
- The written judgment's specification of the curfew hours, electronic monitoring, and related administrative details did not impermissibly add burdensome punishments or restrictions because those provisions clarified or implemented the curfew already pronounced at sentencing.
- Conditions requiring treatment only if deemed necessary by, or approved by, the Probation Department impermissibly delegate to Probation the judicial decision whether Harris must participate in treatment. Those conditions must be vacated and any replacement must leave the treatment decision to the district court based on on-the-record findings.
- The written search condition had to be vacated because it added burdensome restrictions not included in the oral pronouncement, including a requirement that Harris warn other occupants that the premises might be searched and potentially a broader scope of search than the court announced.
Key quotations
“because Rule 4(b)’s time limits are not derived from any federal statute, those limits are “not jurisdictional and are therefore capable of forfeiture by the government.”” (at 13)
“where, as here, the untimeliness of an appeal is obvious at the time that the government files a motion for summary affirmance in response to an Anders motion, the government must raise that ground for affirmance in its motion or risk losing it.” (at 15)
“we now require a court to, “at the very least, . . . expressly adopt or specifically incorporate by reference particular conditions that have been set forth in writing and made available to the defendant in the PSR, the Guidelines, or a notice adopted by the court.”” (at 18-19)
“the “details of” a condition imposed “can be left to the probation officer,” but “whether a defendant is required to attend [certain programs] at all must be decided by the district court, since the court alone can impose such a condition.”” (at 22)
“the oral pronouncement controls.” (at 30)
Factual background
In 2018, Harris sold 12.73 grams of crack cocaine in three controlled buys conducted by the FBI. A search of his residence yielded three firearms, more than 1,000 grams of cocaine, cocaine base, drug-packaging supplies, and cash. Harris pleaded guilty to drug-distribution and firearm offenses and received a 120-month prison sentence followed by five years of supervised release. The district court orally described some special conditions but included the standard conditions and detailed versions of the special conditions in the later written judgment.
Procedural history
Harris pleaded guilty in the Eastern District of New York to possession with intent to distribute cocaine and cocaine base and possession of firearms during and in relation to drug trafficking. The district court entered judgment on October 18, 2019, imposing imprisonment and supervised release with standard and special conditions. Harris filed a pro se notice of appeal on September 27, 2022. After Anders proceedings, the Second Circuit identified nonfrivolous issues, ordered merits briefing, rejected the government's belated timeliness objection as forfeited, and remanded in part while affirming in all other respects.
Remand instructions
The district court must vacate the 13 standard conditions and Special Conditions Two, Three, and Four. It may conduct a resentencing hearing and reimpose some or all of those conditions consistently with the opinion. Any standard conditions must be orally advised or specifically incorporated by reference after being made available to Harris. Any treatment condition must be imposed by the district court itself based on on-the-record findings, and any search condition must be supported by on-the-record findings and clarified in the oral pronouncement. Standard Condition Twelve may not be imposed as written because it improperly delegates authority to Probation. The judgment is affirmed in all other respects.